Adam S. Chilton, Jonathan S. Masur, Kyle Rozema posted a draft of a new paper, titled Political Discrimination in the Law Review Selection Process. The authors found “evidence that [law review] editors accept articles in part because of shared ideology with authors, and that this is driven by information-based rather than taste-based discrimination.” I have written and spoken at length about the importance of intellectual diversity in the legal academia. (See my contribution to the AALS symposium on this topic.) This article reminded me of a personal anecdote that bears on this topic: ideological discrimination in the selection of law review editors.
When I applied to the editorial board of the George Mason Law Review in 2008, my preferred position was Articles Editor. Even as a 2L, I was already enthralled by legal scholarship, and wanted to be involved in selecting the articles our volume would print.
During the selection process, I was required to sit for an interview with the outgoing editorial board. Early on in the interview, I was asked whether I could objectively review an article by a liberal law professor that I did not agree with. (I can’t know for certain, but am fairly confident that none of the other applicants had to answer such a question.) “Of course,” I replied, “I would consider fairly all manner of scholarship.” Even at that time, I was cognizant that most law professors, and the scholarship they write, would be from a left-of-center perspective. Thus the question seemed like a non-sequitur, because reviewing left-of-center scholarship would occupy most of my time. (As I recall, such was the case.) But I indulged the question. Later, I was asked what the most recent law review article I read was. I replied that it was Michael McConnell’s defense of Brown v. Board of Education on originalist grounds. Wrong answer. I don’t recall the other questions asked, but the remainder of the interview was fairly hostile.
I ultimately was selected as one of the four Articles Editor. As I would learn, one of the outgoing Articles Editor–a conservative–had to fight for my selection. The outgoing editor had to mollify the board that I would in fact be able to accurately assess scholarship and be fair to left-of-center scholarship. With that assurance, I got the job. Had the prior board not head at least one conservative, I likely would not have gotten the job. Intellectual diversity breeds more diversity.
Reading the Chilton/Masur/Rozema paper made me reconsider this episode in a very different light. Perhaps it was a mistake to advocate for my selection as one who would neutrally review liberal scholarship. Instead, I should have been championed as someone who could bring a different perspective to the selection process. That is, I could find value in conservative scholarship that my colleagues were likely to miss, and, conversely, I could spot flaws in liberal scholarship that my colleagues were likely to miss. And vice versa. I’m sure there was some progressive scholarship for which I was unduly harsh on, and my colleagues balanced me out.
There is no shortage of commentary about the lack of racial or gender diversity on law review editorial boards. Far less studied is the lack of intellectual diversity in these all important institutions. I don’t need to remind readers of this blog that the ability to place articles in top-ranked journals is a key factor to getting hired on the entry-level and lateral markets. A lack of conservative and libertarian law review editors makes the prospects for conservative and libertarian scholars even tougher than they already are.